SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO: 1139/2023
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
C[...] R[...] P[...] PLAINTIFF
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH: NORTHERN CAPE PROVINCE DEFENDANT
Heard on : 23 May 2025
Delivered on : 26 September 2025
Coram : Olivier AJ
Summary : Application to declare particulars of claim an irregular step –
Application in terms of Rule 30(1) read with Rule 18(12) of Uniform
Rules of Court – Claim based on alleged medical negligence –
Claim technical – More particularity required in particulars of claim.
ORDER
In the result, the following order is made:
1. The particulars of claim is declared to be an irregular step in the sense that
paragraph 12 thereof does not comply with Rule 18(4) of the Uniform Rules of
Court;
2. The plaintiff is directed to amend paragraph 12 of the particulars of claim in
order to comply with the provisions of Rule 18(4) within 20 (twenty) days from
date of this order; and
3. The costs of this application are to be costs in the cause.
JUDGMENT
OLIVIER AJ
1. The plaintiff is C[...] R[...] P[...], a major female residing in Galeshew e,
Kimberley, Northern Cape Province and the defendant is the Member of the
Executive Council responsible for health in the Northern Cape Province in his
official capacity.
For purposes hereof the parti es will be referred to as “ the plaintiff” and “ the
defendant” respectively.
2. The defendant approached this Court by way of application for an order in
essentially the following terms:
2.1 That the particulars of claim dated 22 June 2023 filed by the plaintiff under the
above case number (“the particulars of claim”), be declared to be an irregular
step in terms of the provisions of R ule 30(2)(b) of the Uniform R ules of Court
(herein after referred to as “the Rules”);
2.2 That the particulars of claim be set aside;
2.3 That the plaintiff be directed to amend the particulars of claim to comply with
the provisions of R ule 18(4) of the Rules within 20 (twenty) days from date of
the order applied for; and
2.4 That the plaintiff is to pay the costs of the application.
3. The application was opposed and counsel for bo th parties filed compre hensive
heads of argument, for which I am thankful.
4. It should be stated from the outset that Mr . Jaga SC , who appeared for the
defendant, conceded during argument that in the event of the Court finding in
favour of the defendant, it might be problemati c to grant an order to the effect
that the particulars of claim should be amended if an order is simultaneously
granted for the particulars of claim to be set aside.
Mr. Jaga indicated that, should the Court agree with the defendant in this
matter, the defendant will not be moving for an order for the setting aside of the
particulars of claim , but only for an order to the effect that the particulars of
claim be amended in order to bring same in line with the provisions of Rule
18(4) of the Rules.
5. The plaintiff issued summons out of this C ourt on 22 June 2023 claiming the
total amount of R2 150 000.00 (Two Million One Hundred and Fifty Thousand
Rand) from the defendant, which claim is based on the death of R[...] R[...] S[...]
P[...] (“the Child”) who passed away on 8 July 2020.
6. The plaintiff claims that she is the biological mother of the child, a fact that was
not dis puted during argument, and that the child pass ed away whilst being
admitted to hospital and whilst being in the care of medical practitioners, nurses
and other medical personnel who were, at all material times, employed by the
defendant.
7. The defendant filed a notice of intention to defend the action, and on the same
day served a notice in terms of R ule 30(2)(b) of the Rules (herein after referred
to simply as “ the Rule 30(2)(b) notice”) on the attorneys for the plaintiff wherein
the defendant alleges that the particulars of claim fails to comply wi th the
provisions of Rule 18(4) of the R ules and that the particulars of claim therefore
constitutes an irregular step.
The plaintiff was invited to remove the defendant’s causes of complaint within
10 (ten) days, failing which the defendant indicated that an application would be
made in terms of Rule 30(1) of the Rules.
8. The plaintiff did not react to the abovementioned notice by the defendant which
ultimately lead to this application being lodged on 11 August 2023.
The application became opposed and was eventually set down on the opposed
roll of 23 May 2025 for argument and determination.
9. The relevant parts of the particulars of claim read as follows:
“4. At all times material hereto, the medical practitioners, nurses and other
medical personnel (‘the professional staff’) who administered medical and
nursing services and/or other care to the child (their duties), were employed by
the defendant/Department, in the alternative, were duly authorised agents of
the defendant/Department, acting in the furtherance of the
defendant’s/Department’s obligations, and were acting within the course and
scope of their employment with the defendant/Department, which
aforementioned functions were performed by the aforementioned pro fessional
staff at the De Aar Hospital…
5. At all material times:
5.1. The defendant was responsible for the Department and the
professional staff’s contractual and delictual liabilities;
5.2. The defendant was consequently nominally and vicariously liable for
the conduct and/or omissions of the professional staff…
5.3. The De Aar hospital fell under the authority of and was controlled
and operated by the Department;
5.4. The defendant was under a legal duty to ensure that reasonable
medical and services were provided to the public and more
particularly to the plaintiff and the child, in that:
5.4.1. the defendant held out to the public, more particularly to
the plaintiff, that the Hospital is a place w here reasonable
medical care, treatment and advice is rendered; and
5.4.2. …
6. …
7. …
8. As a consequence of the professional staff of the defendant, whose full and
further particulars are unknown to the plaintiff, accepting the plaintiff’s child
as a patient, a special professional relationship of doctor and patient arose
and was in existence at all times material thereto.
9. The special professional relationship as pleaded in the paragraph above, were
formed, inter alia, as a result of an oral agreement (the agreement) entered
into between the plaintiff, acting personally, and the defendant, duly
represented by its employees (the professional staff ) ... in the alternative
formed part of the defendant’s legal duty towards the child.
10. The following were the material express, implied or tacit terms of the
agreement, alternatively formed part of the defendant’s legal duty towards the
child:
10.1. That the defendant and/or hospital would employ sufficient and
suitably skilled and experienced professional staff so as to provide
reasonable medical care and supervision to the plaintiff’s child during
his admissions to the hospital;
10.2. In so doing the professional staff would care for, monitor and
generally perform their professional duties in relation to the plaintiff’s
child with the level and skill as is reasonable for professionals in the
respective fields; and
10.3 That the defendant would ensure that reasonable sufficient medical
equipment and facilities were available so as to provide the child with
reasonable medical care, supervision and the treatment and that such
equipment and facilities would be r easonable maintained so as to be
in good working order when required.
11. In particular, but without derogating form the generality of the aforegoing
reasonable level of care and skill attributed to the defendant’s professional
staff, as pleaded in the p aragraph above, the defendant was obliged, by way of
the professional staff so employed at the hospital to:
11.1. Examine and diagnose the child;
11.2. Provide the child with the correct and adequate medication;
11.3. Timeously provide the child with the correct and adequate
medication;
11.4. Regularly monitor all physiological functions of the child;
11.5. Ensure that all the relevant equipment of th e hospital is in good
working order;
11.6. Ensure that the hospital’s equipment is so utilized to monitor all
physiological functions of the child;
11.7. Ensure that the relevant professional care be provided to the child;
11.8. Ensure that in the event of the hospital being inadequately equipped to
care for the child, that the child be timeously transferred to a facility
where the relevant and adequate care can be provided to the child;
11.9. Ensure that the professional staff so employed by the defendant are
adequately trained to be able to care for the child;
11.10. Ensure that a sufficient number of professional staff are available to
attend to the child; and
11.11. Ensure that all the care, monitoring and examinations performed on
the child whilst in the care of the hospital be documented.
12. The professional staff, the hospital and/or the defendant breached the
agreement, alternatively legal duty, by acting negligently in one or more of the
following respects, and in particular, but witho ut derogating from the
generality of the aforegoing, the professional staff of the defendant at the
hospital failed to:
9.1. Correctly examine and diagnose the child;
9.2. Timeously or at all provide the child with the correct and adequate
medication;
9.3. Ensure that the child be regularly monitor ed as to his physiological
condition;
12.4. Ensure that medical equipment at the hospital was functional and able
to be utilized to monitor the child;
12.5. Ensure that nursing and professional staff and doctors regularly and
timeously attended to the child to examine and monitor the child;
12.6. Ensure that the child be provided with exper t care, in the event of the
child not being able to be cared for by the professional staff of the
hospital;
12.7. Ensure that the well-being of the child not be further compromised by,
inter alia, nursing staff hitting the child on his bum to endeavor to
stop him from crying;
12.8. Ensure that the correct procedures be followed when the child was
placed on oxygen by, inter alia, failing to ensure that oxygen flow to
the child was not in excess of the correct quantity;
12.9. Ensure that the child be timeously transferred to Kimberley in order to
be provided with adequate care;
12.10. Ensure that written records be kept relating to the examination,
monitoring and medication provided to the child;
12.11. Allow the plaintiff’s and her child’s private physician, Dr Tron, access
to the hospital and the child on 8 July 2020, despite the plaintiff’s
request; and
12.12. In general , to comply with the reasonable level of care and skill
attributed to the defendant’s professional staff as pleaded in
paragraphs 12, 12.1 to 12.11 supra.
13. As a result of the defendant’s professional staff’ s negligent conduct at the
hospital, as pleaded supra, the child passed away on 8 July 2020 at
approximately 12h00.” (My omissions).
10. The gist of the defendant’s complaints about the contents of the particulars of
claim is that it does not comply with the provisions of Rule 18(4) of the Rules in
the sense that it fails to state in a clear and concise manner the material facts
upon which the claim is based with sufficient particularity with the resultant
effect that the defendant is not able to reply thereto.
The defendant raises two primary grounds of complaint and mainly takes aim at
paragraphs 11, 12 and 13 of the particulars of claim as set out above.
11. Under the heading “ FIRST GROUND OF COMPLAINT ”, and with specific
reference to paragraph 12 of the particulars of claim , the defendant alleges as
follows:
“3. The plaintiff has failed to state in which way or manner the defendant’s staff
has failed to correctly examine and diagnose the child as alleged in paragraph
12.1 of the Particulars.
4. The plaintiff has failed to allege what the diagnoses made by the staff of the
defendant was and why it was incorrect.
5. The plaintiff has further failed to allege what the correct diagnosis of the child
should have been.
6. The plaintiff has not stated any facts regarding the allegation in paragraph
12.2 of the Particulars that the defendant’s employees failed to timeously
provide the child with the correct or adequate medication.
7. The plaintiff has furthermore failed to allege what the correct or adequate
medication was that should have been given to the child nor has she stated
what medication was in fact given to the child by the defendant’s employees.
8. There are no allegations in the Particulars of when the correct or adequate
medication should have been given to the child and how this was causative of
his death.
9. The plaintiff has failed to state any facts in support of the allegation that the
defendant’s employees failed to regularly monitor the child, more particularly
when they should have monitored him and why is it alleged that this constitutes
a cause of his death.
10. The plaintiff further failed to state any facts in support of the allegati on in
paragraph 12.4 of the Particulars that the medical equipment at the hospital
was not functional and could not be used to monitor the child.
11. The Particulars do not contain any facts indicating that the allegation in
paragraph 12.5 of the Particu lars that the nursing and professional staff did
not regularly and timeously attend to examining and monitoring the child.
12. The plaintiff has not stated any facts supporting the alleged failure by the
nursing and professional staff causally contributed to the minor child’s death.
13. There are no averments in the Particulars that expert care was required by the
minor child, as alleged in paragraph 12.6 thereof nor what circumstances
warranted the provision of such expert care.
14. The plaintiff makes no averment in the Particulars of what the correct
procedures were to be followed when the minor child was placed on oxygen as
averred in paragraph 12.8 thereof.
15. The plaintiff has furthermore not alleged facts of what the correct quantity of
oxygen was that had to be given to the minor child nor what the quantity was
which the defendant’s employees had given him.
16. There are no allegations made in the Particulars of the circumstances which
necessitated the transfer of the child to Robert Mangal iso Sobukwe Hospital
(RMSH) or why the failure to do so was negligent.
17. The plaintiff has failed to make any factual averments in the Particulars on
what basis the grounds of negligence pleaded in paragraph 11 thereof causally
contributed to the child’s death.
18. The plaintiff has failed to state or plead in a clear and concise manner t he
material facts on which her claim is based with sufficient particularity to
enable the defendant to reply thereto.
19. The plaintiff has accordingly failed to comply with the prescripts of Rule 18(4)
as she has not pleaded or stated any material facts regarding the allegations of
negligence in paragraphs 11 of the Particulars are based on which she relies
for the grounds of negligence pleaded herein.”
12. Further to the above and under the heading “ SECOND GROUND OF
COMPLAINT” and with specific reference to paragraph 13 of the particulars of
claim, the defendant alleges as follows:
“22. The plaintiff has failed to state what the child’s cause of death was.
23. The plaintiff has furthermore failed, in the Particulars to allege how the
conduct of the defendant’s professional staff caused the child’s death.
24. The plaintiff has failed to state or plead in a clear and concise manner the
material facts on which her claim is based with sufficient particularity to
enable the defendant to reply thereto.
25. The plaintiff has accordingly failed to comply with the prescripts of Rule 18(4)
as she has not pleaded or stated any material facts regarding the allegations of
negligence in paragraphs 11 of the Particulars are based and on which she
relies for the grounds of negligence pleaded therein.”
13. It is trite that a party to a cause in which an irregular step has be en taken, may
approach the Court with an application to have it set aside.1
Rule 30(2) of the Rules states that an application for the setting aside of the
irregular step must be made on notice to all parties setting out the specifics in
respect of the irregularity or the impropriety alleged and further states that such
an application may only be made if:
1 Rule 30(1) of the Rules.
“(a) the applicant has not himself taken a further step in the cause without
knowledge of the irregularity;
(b) that applicant has, within ten days of becoming aware of the step, by written
notice afford his opponent and opportunity of removing the cause of complaint
within ten days;
(c) the application is delivered within 15 days after the expiry of the second period
mentioned in paragraph (b) of sub-rule (2).”
14. The question as to whether the defendant adhered to the procedural
requirements as set out in Rule 30 of the Rules was never in issue and I will
consequently not spend any further time hereon.
Suffice it to say that I could not find any indication that the procedural
requirements of Rule 30 were not adhered to by the defendant in lodging this
application.
15. Rule 18(12) of the Rules specifically states that a failure to comply with the
provisions relating to pleadings as set out in R ule 18 and certainly also Rule 22
of the Rules, is deemed to be an irregular step within the meaning of Rule 30(1)
and it is also trite that even if a pleading is excipiable, a party may in any event
make use of the provisions of Rule 30.2
16. Rule 18(4) of the Rules states as follows:
2 See inter alia Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing & Andere 2001 (2)
SA 790 (T) at 796G.
“Every pleading shall contain a clear and concise statement of the material facts upon
which the pleader relies for his or her claim, defence or answer to any pleading, as the
case may be, with sufficient particularity to enable the opposite party to reply thereto.”
17. Mr. Harmse maintained that the particulars of claim complies with the provisions
of Rule 18(4) and during his argument he relied primarily on Jowell v
Bramwell-Jones and Others3 and specifically on the following passage:
“… a distinction must be drawn between the facta probanda, or primary factual
allegations which every plaintiff must make, and the facta probantia, which are the
secondary allegations upon which the plaintiff will rely in support of his primary factual
allegations. Generally speaking, the latter are matters for particulars for trial and even
then are limited. For the rest, they are matters for evidence…”4
18. I was also pointed to McKenzie v Farmers’ Co -operative Meat Industries
Ltd5 where the Court in dealing with the description/definition of “ cause of
action” stated that it comprises “ … every fact which i t would be necessary for the
plaintiff to prove, if traversed, in order to support this right to judgment of the Court. It
does not comprise every piece of evidence which is necessary to prove each fact, but
every fact which is necessary to be proved.”6
19. In Nasionale Aartappel Ko öperasie Bpk v Price Waterhouse Coopers
Ingelyf en Andere 7 the Court explained that the difference between facta
probanda and facta probantia is that the formers refers to those facts that a
party needs to prove in order to sustain a cause of action, whilst the latter refers
to those facts that will prove the former.8
3 1998 (1) SA 836 (W).
4 Bramwell-Jones, supra at 903A-B.
5 1922 AD 16.
6 McKenzie, supra at 23. See also Black Sheep Capital (Pty) Ltd v Du Toit and Others [2023] ZAGPJHC
1483 (21 December 2023), par 20.
7 [2001] 2 All SA 319 (T).
1483 (21 December 2023), par 20.
7 [2001] 2 All SA 319 (T).
8 Nasionale Aartappel Koöperasie Bpk, supra at 324.
20. I was finally invited to have regards to Afgri Bedryfs Beperk v Merwede
Boerdery BK and Others9 where the Court held as follows:
“Facta probantia do not belong in the particulars of claim. They do not form part of the
essential averments which a defendant is required to meet in his plea. He can therefore
not insist on their being provided in the particulars of claim and van only obtain them,
after having filed his plea, by way of a request for discovery or a request for further
particulars for trial.”10
21. It was argued on behalf of the plaintiff that the particulars of claim in the present
matter affords the defendant sufficient information to plead thereto and that
what the defendant in essence wants the Court to order, is that facta probantia
should be provided which is not acceptable and should not be allowed.
It was further argued that any issues that remain, after the plea of the defendant
has been filed, may be sorted out by way of a request for further particulars and
discovery and may also be proven by way of the leading of evidence of expert
witnesses.
22. Mr. Jaga quoted Rule 18(5) which states as follows:
“When in any pleading a par ty denies an allegation of fact in the previous pleading of
the opposite party, he or she shall not do so evasively but shall answer the point of
substance.”
23. The gist of the argument on behalf of the defendant is that the particulars of
claim not only fails to comply with the provisions of Rule 18(4) of the Rules, but
also that in its current form, it does not allow the defendant the opportunity to
9 [2010] ZAFSHC 168 (17 December 2010).
10 Afgri Bedryfs Beperk, supra, par 23.
plead thereto which in essence denies the defendant the opportunity to comply
with the provisions of Rule 18(5).
It was submitted that as matters now stand, the defendant will only be able to
plead bare denials and that the defendant will not be afforded an opportunity to
answer to the allegations made in the particulars of claim with any measure of
particularity.
24. Mr. Jaga urged me to consider the case of HAL obo MML v MEC for Health,
Free State11 where the learned Wallis JA remarked as follows:
“One can allow a measure of generality in pleading allegations of negligence, but
simply to allege everything the pleader can conjure up as potential negligence is
unacceptable. There needs to be clarity as to the case being made and the nature of the
impugned conduct on the part of the defendant, or those for whose conduct the
defendant is said to be liable, who must at least be identifiable.”12
and further:
“…litigation is not a game. This case resembles nothing so much as a game commenced
by hopefully kicking the ball of a summons into play, without any factual basis for a
claim beyond knowing that MML had cerebral palsy caused by a hypoxic -ischemic
incident a nd … hoping Micawber -like that something would turn up in the course of
pre-trial preparation … he said nothing about the specific acts of negligence that were
to be relied on, who was responsible for those acts, and what should have been done if
there had been no negligence. This diffuse, unfocussed approach to the conduct of
complex litigation is to be deprecated. If the issues are not properly and clearly defined
the conduct of the trial cannot be controlled in a properly efficient manner.”13
11 2022 (3) SA 571 (SCA).
12 HAL v MEC for Health, supra, par 193.
13 Ibid, paras 197 and 198.
25. The above quoted views of Wallis JA were recently endorsed by Mamosebo
ADJP (as she was then) in Disipi v Member of the Executive Council for
Health: Northern Cape Province.14
26. In view of the fact that Rule 18(12) specifically states that non -compliance with
the provisions of Rule 18 constitutes an irregular step, a greater degree of
particularity of pleadings has been called for 15 and it does appear that the
Courts in general, require a greater degree of particularity specifically in cases
where possible medical negligence is alleged 16 and that the emphasis is placed
on the requirement that the opposing party must be placed in a position to
properly reply to what is alleged in the impugned pleading.17
27. The question is therefore whether the defendant, in the present matter, is in a
position to properly plead to the particulars of claim in its current form.
28. If regards are to be had to the current legal position and the fact that the
plaintiff’s claim is based on alleged medical negligence and is per definition
technical in nature, I hold the view that paragraph 12 of the particulars of claim
has been pleaded with too much generality and that the plaintiff would need to
provide more particularity to enable the defendant to properly plead thereto.
29. I am of the view that the plaintiff needs to provide more clarity as to the specific
acts of negligence relied on as well as to what should have been done in order
to ensure that there was no negligence on the part of the persons involved and
details should also be provided as to the specific persons allegedly involved in
these acts.
14 [2024] ZANCHC 117 (13 December 2024), paras 22 and 23.
15 See Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing & Andere, supra at 799;
Trope v South African Reserve Bank and Another 1992 (3) SA 208 (T) at 210.
16 HAL v MEC for Health, supra; Disipi, supra.
17 Deltamune (Pty) Ltd and Others v Tiger Brands Limited and Others [2022] 2 All SA 26 (SCA).
30. That being said, it should also be s tated that the particulars of claim in its
current form, does not prevent the defendant to plead thereto, but I am of the
view that if the plaintiff is allowed to amend her particulars of claim at this point
in order to address the complaints by the defendant in as far as paragraph 12 of
the particulars of claim is concerned, it will ensure a clear statement of issues
so that both parties will be in a position to know the cases that they need to
meet from the outset.
31. It is further my view that, if regards are to be had to all of the above, the
defendant’s complaints with regards to the allegations made in paragra ph 13 of
the particulars of claim are without merit and that paragraph 13 of the
particulars of claim contains sufficient particularity which would allow the
defendant to plead thereto.
COSTS:
32. Despite the fact that the defendant was substantially successful in its
application, I hold the view that it would be unfair towards to plaintiff, who
litigates in her personal capacity, to mulct her with the costs of this application in
circumstances where she essentially had no control ov er the events that
ultimately lead to this application.
The plaintiff was not responsible for the preparation of the particulars of claim
and consequently had no say on the manner in which the allegations in the
particulars of claim were worded and/or structured and/or pleaded.
33. In view of the above and also in view of what I stated in paragraph 30 supra, I
hold the view that the costs of this application should be costs in the cause.
ORDER:
34. In the result, the following order is made:
1. The particulars of claim is declared to be an irregular step in the
sense that paragraph 12 thereof does not comply with Rule 18(4)
of the Uniform Rules of Court;
2. The plaintiff is directed to amend paragraph 12 of the particulars of
claim in order to comply with the provisions of Rule 18(4) within 20
(twenty) days from date of this order; and
3. The costs of this application are to be costs in the cause.
_________________________
A.D. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
REPRESENTATIVES OF PARTIES:
For PLAINTIFF : Adv. J. Harmse
o.i.o CJ Bouwer Attorneys
GRAAF-REINET
c/o Van Den Heever Inc.
KIMBERLEY
For DEFENDANT : Adv. R. Jaga SC
Adv. S. Desai
o.i.o Robert Charles Attorneys
KIMBERLEY